Wabanaki Legal News, Winter 2008
by Paul Thibeault, Esq. & Michael Guare, Esq.
Since 1996, Pamela Francis, the former Executive Director of the Pleasant Point Passamaquoddy Housing Authority, has been trying to sue the Housing Authority, its former Executive Director, Colleen Dana-Cummings, and several other members of the Passamaquoddy Tribe. Ms. Francis' case began with her termination from her position as Executive Director and evolved into a dispute over the ownership of her former residence on the reservation. The case has now been to the Maine Supreme Court four times. In each of the first three cases, the Maine Supreme Court addressed the limitations of state court jurisdiction over "internal tribal matters" as set forth in the Maine Indian Claims Settlement Act.
In its first three opinions (Francis I, II, and III), the housing authority and the other defendants argued that Ms. Francis' claims involved internal tribal matters and asked the Maine Supreme Court to dismiss her claims, but the Court refused to do so. In Francis I, the Court found that the housing authority could not take advantage of the protections of section 6206 of MICSA because the housing authority was not a branch of the Passamaquoddy Tribal government. In Francis III, the Court held that MICSA protections against the authority of Maine's courts did not apply to individual members of the Tribe.
In this latest decision in Francis IV, the Court attacked the issue of sovereignty over "internal tribal matters" in a different way and with a different result. The Court clarified that section 6206(1) of the Settlement only protected the Tribe, and that the protections could not be used by other entities or individuals to protect themselves from the jurisdiction of the Maine courts. However, it went on to say that, "[w]hile only the Tribe may benefit from the prohibition on regulation of internal tribal matters addressed in section 6206(1), any party may assert that a court of the State lacks jurisdiction over a particular claim because court action on the claim would cause prohibited state regulation of an internal tribal matter."
The Court then allowed the Passamaquoddy Tribe to intervene in the case so that the Tribe will be able to make arguments and offer evidence regarding whether the court is being asked to regulate an "internal tribal matter."
The language in the Maine Indian Claims Settlement legislation concerning "internal tribal matters" has been the most controversial piece of the Settlement and has generated several divisive and expensive law suits. Shortly after the Settlement a profound disagreement emerged between tribal and non-tribal parties concerning the meaning of the "internal tribal matters" provision. Section 6206(1) states:
Except as otherwise provided in this Act, the Passamaquoddy Tribe and the Penobscot Nation, within their respective Indian territories, shall have, exercise and enjoy all the rights, privileges, powers and immunitiesâ€¦of a municipality of and subject to the laws of the State, provided, however, that internal tribal matters, including membership in the respective tribe or nation, the right to reside within the respective Indian territories, tribal organization, tribal government, tribal elections and the use or disposition of settlement fund income shall not be subject to regulation by the State.
The disagreement between the state and the tribes has centered on the extent to which the Settlement was intended to limit the inherent sovereign powers of the tribes, especially in activities that may involve non-Indians and have potential impact outside of the tribal communities. The state interpretation would limit the meaning of the words "internal tribal matters" to the areas listed in section 6206(1): membership in the tribe or nation, residence within Indian territories, tribal organization, tribal government, elections, and the use of settlement funds. Further, the state and other parties allied with the state, such as paper companies, have maintained that, except for internal tribal matters, Section 6206(1) essentially replaces the tribe's sovereignty with the status of a Maine city or town.
Supporters of tribal sovereignty believe that the state government's interpretation of "internal tribal matters" contradicts the spirit of the Maine Indian Claims Settlement. They believe that the state's interpretation of tribal control over internal matters is overly narrow and is not consistent with the principles of federal Indian law that provided the historical and legal context of the Settlement. Federal Indian law has been guided by the belief that laws must specifically state that they apply to Indian tribes in order for them be used to regulate tribal activity. From the viewpoint of tribes, the state of Maine's narrow interpretation of sovereignty has resulted in unnecessary interference with the efforts of the tribal communities to preserve their culture, protect their natural environments, and improve economic conditions for Native people.
Tribal advocates have maintained that the tribes would never have given up their basic sovereignty for the Settlement. They would never have entered into the Settlement, if they had understood it to mean that tribal sovereignty under federal law would be exchanged for rights only equivalent to that of any city or town in Maine and subject to state laws like any city or town. Tribal advocates also argue that the provision for municipal status (in which the internal tribal matters language appears) was primarily intended to be a grant of new authority to the tribes so that they would have access to municipal funding sources.
The Washington County Superior Court will now have to examine all of the relevant facts to determine which, if any, involve internal matters. Ms. Francis' case involves tribal housing that is situated on trust land, and serves exclusively, or almost exclusively, tribal members. Since 1996, this trust has been operated under a uniquely Indian housing program, NAHASDA. These facts should figure prominently in the Superior Court's analysis and the final resolution of this case.